Sheaffer, Matter of, 584S172

• Decision Date: 16 December 1988
• Docket Number: No. 584S172,584S172
• Citation: 531 N.E.2d 495
• Parties: In the Matter of Robert L. SHEAFFER.
• Court: Indiana Supreme Court

Page 495

531 N.E.2d 495

In the Matter of Robert L. SHEAFFER.

No. 584S172.

Supreme Court of Indiana.

Dec. 16, 1988.

As Amended Dec. 20, 1988.

James H. Voyles, Indianapolis, for respondent.

Sheldon A. Breskow, Executive Secretary, Gregory Fudge, Staff Atty., Indianapolis, for Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

The Respondent in this case, Attorney Robert L. Sheaffer, was charged in a one-count Verified Complaint For Disciplinary Action with engaging in professional misconduct in violation of Disciplinary Rules 7-102(A)(6) and (8) and 1-102(A)(1), (4), (5) and (6) of the Code of Professional Responsibility for Attorneys at Law. Pursuant to Admission and Discipline Rule 23, the Hearing Officer appointed by this Court has heard the case and has tendered his Findings of Fact including conclusions of law.

The Respondent has petitioned this Court to review the findings and conclusions contending that they are not supported by and are contrary to the evidence presented at the hearing.

The review process employed in disciplinary cases involves this Court's examination not only of the Hearing Officer's findings and conclusions, but also of the entire record tendered in the case. The Hearing Officer's findings receive emphasis due to his unique opportunity for direct observation of the witnesses. In re Stanton, (1986), Ind., 492 N.E.2d 1056; In re McDaniel (1984), Ind., 470 N.E.2d 1327; In re Welke (1984), Ind., 459 N.E.2d 725. This, however, makes neither the findings nor the conclusions of fact and law binding upon this Court. In re Long and Phillips (1986), Ind., 486 N.E.2d 1031. Respondent's challenges will be examined within the context of this review process and will be resolved by this Court's determination of the ultimate findings and conclusions.

Having closely reviewed all matters presented in this case, we now find that the Respondent represented Jimmy D. Wilson on criminal charges of Driving While Intoxicated (D.W.I.) with blood alcohol content (B.A.C.) of 0.09% and Possession of a Controlled Substance. The charges arose from an incident which occurred on March 21, 1983.

On that day, Trooper Mike Kolls of the Indiana State Police observed a 1978 white Chevrolet Monte Carlo travelling north of Shelbyville on Road 421, being driven by a man, later identified as Jimmy D. Wilson, accompanied by a female and another male in the front seat. Trooper Kolls observed that the car "slammed on its brakes", pulled off the roadway, partially in a yard and partially on the roadway. Kolls proceeded to go around the car, stop and observe that immediately thereafter, the driver and the passenger riding in the center of the front seat, later identified as Claudeana J. Gaskins (now Claudeana J. Wilson), exited from the driver's side and re-entered the vehicle changing positions. The third passenger, who was later identified as Archie Anderson, remained seated in the front seat, and the car proceeded with Claudeana Jenkins driving. Kolls, with the assistance of Deputy Cooper of the Shelby County Sheriff's Department, stopped the vehicle in Fairland, Indiana. Jimmy D. Wilson was arrested after being given a field sobriety test and a breathalyser test. Claudeana Gaskins was issued a traffic citation.

On September 8, 1983, Jimmy D. Wilson was tried by a jury in the Shelby County Court and was acquitted on the D.W.I. charge but was found guilty of Possession of a Controlled Substance.

During the trial, Trooper Kolls testified that when he first observed the vehicle, Jimmy Wilson was driving. He also testified that he saw the car stop and saw Jimmy and Claudeana exchange positions. The vehicle continued, and, when it was finally stopped by Trooper Kolls, Claudeana Gaskins was driving.

The Wilsons testified that Claudeana was driving at all times, that the car never stopped, that the drivers did not change, and that they had followed State Road 9 and had turned left on to County Road 150 prior to turning on to Road 421.

Because of this conflicting testimony, Kolls interviewed Archie Anderson and obtained a tape-recorded statement regarding what Anderson had observed on March 12, 1983, while a passenger in the Wilson's automobile. Archie Anderson's statement indicated that the three participants made two stops, at the Northside Liquor and at the Crystal Flash gas station and continued northeast on Road 421. His statement corroborated Trooper Kolls' version that Jimmy Wilson had been driving and had exchanged places with Claudeana before they were stopped. His statement also indicated a route which contradicted Wilson and Gaskin's testimony as to where they had turned on to Road 421.

Archie Anderson was told by Jimmy Wilson's mother that the Respondent wanted to speak with him. Archie Anderson called the Respondent who told him to make an appointment and come to talk. Archie related this to Trooper Kolls.

On September 12, 1983, after contacting and receiving the approval of the Shelby County Prosecutor, a body transmitter, referred to by its brand name as "Kel-Set" was concealed on the person of Archie Anderson prior to the arranged appointment between him and the Respondent at Respondent's law office in Shelbyville, Indiana. The recorder was checked and found to be in correct operating order. Archie and the Respondent met, and their conversation was transmitted and received, monitored and recorded by Trooper Kolls and a detective sergeant of the Indiana State Police.

During the conversation ...